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Court of AppealDismissedCriminal Appeal No. 39 of 2007

Mulinge Maswili v Republic [2012] KECA 149 (KLR)

Court of Appeal of Kenya
28 March 2012
SBS. E. O. BosireJNJ. G. NyamuHOH. M. Okwengu
2,447 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that attempted robbery with violence carries its own specific penalty, so the general seven-year cap for attempted offences does not apply.

What this practically means

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Executive summary

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The appellant, Mulinge Maswili, was convicted of attempted robbery with violence and, after losing his first appeal in the High Court at Machakos (Ojwang & Sitati JJ.), appealed to the Court of Appeal at Nairobi. Counsel for the appellant raised four complaints: non-supply of witness statements requested for cross-examination; failure by the prosecution to call certain essential witnesses; lack of interpretation throughout the trial and rejection of his defence without reasons; and a sentence said to be unlawful because section 389 of the Penal Code caps sentences for attempted offences. The Court of Appeal dismissed the appeal in its entirety. On sentence, it held that section 297(2) of the Penal Code prescribes a specific penalty, so section 389, with its phrase 'if no other punishment is provided', is expressly excluded; attempted offences carrying separate and distinct penalties fall outside section 389's seven-year cap, unlike attempted murder, which attracts it because the death penalty cannot be halved. On the witness statements, the court found no demonstrated prejudice and cautioned trial courts to record accused persons' requests and their satisfaction, since failure may in an appropriate case lead to quashing an otherwise sound conviction. Applying Bukenya v. Republic, it held the uncalled witnesses would have been superfluous, the appellant having been arrested at the scene with a homemade firearm. The language complaint and challenges to the identification evidence and rejection of the defence also failed, the court being unable to interfere with concurrent findings of fact. The decision binds subordinate courts and the High Court on sentencing for attempted offences and on the Bukenya witness-calling principle.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appellant was accorded a fair trial when he requested but was allegedly not furnished with copies of witness statements made to the police
  2. 2.Whether the failure to call certain prosecution witnesses (members of the public and police officers) vitiated the conviction
  3. 3.Whether the failure to provide interpretation throughout the trial breached the appellant's right to a fair trial
  4. 4.Whether the appellant's defence was improperly rejected without reasons
  5. 5.Whether section 389 of the Penal Code applies to the offence of attempted robbery with violence contrary to section 297(2) of the Penal Code, and whether the sentence imposed was contrary to law
  6. 6.Whether the evidence on identification of the appellant was sufficient

Key legal issues

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01

Whether section 389 of the Penal Code governs the sentence for attempted robbery with violence under section 297(2)

Holding

Section 389 does not apply because section 297(2) prescribes a specific penalty; the phrase 'if no other punishment is provided' creates an express exception.

Reasoning

The court distinguished two categories: attempted offences without separate punishment (e.g. attempted murder), where section 389's seven-year cap applies because the death penalty cannot be halved; and attempted offences with separate, specific penalties, where section 389 is excluded. Attempted robbery with violence falls in the latter category, as Parliament deliberately provided specific sentences and worded section 389 to avoid conflict.

p. 2
02

Whether non-supply of witness statements breached the right to a fair trial

Holding

No breach established. The appellant made a request, the magistrate ordered the statements supplied, but the appellant never renewed the request or complained in the High Court, and his cross-examination showed no impairment.

Reasoning

The court noted the trial record showed no indication the statements were supplied but found the appellant's conduct inconsistent with a genuine grievance. It laid down the prudent practice that trial courts should record such requests and their satisfaction, warning that failure may in an appropriate case lead to quashing an otherwise sound conviction. On these facts, no prejudice was demonstrated.

p. 3
03

Whether failure to call certain witnesses vitiated the conviction

Holding

No. The uncalled witnesses (members of the public and police) would not have added materially to the prosecution case, which rested on the appellant's arrest at the scene by the victims.

Reasoning

Applying Bukenya v. Republic, the prosecution must call all necessary witnesses but not a superfluity. Since the prosecution case was grounded on the victims' direct identification and immediate arrest of the appellant found with a homemade firearm, additional witnesses would have been superfluous, and the complaint was dismissed as a red herring.

p. 3
04

Whether the identification evidence was weak and the defence improperly rejected

Holding

The concurrent findings of the trial and first appellate courts that the appellant was positively identified were sound; the defence of being a passer-by was disbelieved by both courts.

Reasoning

The appellant was arrested at the scene in broad daylight while struggling with the victim over the homemade gun; he was found in possession of the firearm and did not know the victims, nor they him. The trial court assessed demeanor and the High Court independently re-evaluated the evidence, so the second appellate court could not interfere with the concurrent findings.

p. 4

Legal principles established

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  • Where an attempted offence carries a separate and distinct statutory punishment, the general penalty provision in section 389 of the Penal Code does not apply, by virtue of the phrase 'if no other punishment is provided'.
  • Trial courts should record any request made by an accused person and note whether the request was satisfied; failure to do so may, in an appropriate case, lead to quashing of an otherwise sound conviction.
  • The prosecution is obliged to call all witnesses necessary to prove its case but not a superfluity of witnesses; where evidence is barely sufficient, an adverse inference may be drawn from the failure to call a witness.
  • A second appellate court will not interfere with concurrent findings of fact by the trial court and the first appellate court.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.It is so ordered

The bench

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One judgment of the whole court — no separate or dissenting opinions.

SB
majority
JN
majority
HO
majority
On appeal from
High Court of Kenya at Machakos
H.C.CR.A. No. 7 of 2006
Jurisdiction invoked
Second appellate jurisdiction under the Court of Appeal's appellate jurisdiction over High Court criminal appeals (not expressly stated in the judgment)

Relief refused

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Declaration that the appellant's constitutional right to a fair trial was breached by non-supply of witness statements

No evidence of impairment; appellant never renewed the request nor raised the issue in the High Court

p. 3

Relief on the ground that essential witnesses were not called

The uncalled witnesses would not have added to the prosecution case

p. 3

Relief on the ground of inadequate interpretation

The appellant cross-examined all witnesses and asked relevant questions, showing he followed the proceedings

p. 4

Reduction of sentence on the basis of section 389 of the Penal Code

Section 297(2) provides a specific penalty, which excludes the general provision in section 389

p. 2

Costs

No costs order is recorded in the judgment; the appeal was simply dismissed ('It is so ordered').

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

For attempted offences for which separate and distinct punishment is provided, section 389, above, would not apply.
p. 2Sentencing for attempted offences - exclusion of section 389 Penal Code
It is always prudent for the trial court to record any request made by an accused person and if an order has been made for the meeting of that request a note should be made that such request was satisfied.
p. 3Fair trial - recording of accused's requests
The prosecution is obliged to call all witness necessary to prove its case, but it is not obliged to call a superfluity of witnesses.
p. 3Duty to call witnesses - Bukenya principle
In the result and for the reasons we have endeavoured to give, the appellant’s appeal lacks merit. It is accordingly dismissed. It is so ordered.
p. 4Final orders - dismissal of appeal

Issues in the judgment

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minor

The judgment states the offence is 'created by section 296(2) of the Penal Code as read with section 297(2)' while the charge as described in the opening passage is 'attempted robbery with violence contrary to section 297(2)'; the interplay of the two charging formulations is not fully reconciled on the face of the judgment.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (6)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mulinge Maswili v Republic [2012] KECA 149 (KLR)", Case Analysis (2012). Criminal Appeal No. 39 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2012/149/eng@2012-03-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.